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ABM Onsite Services-West, Inc. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

March 7, 2017

ABM Onsite Services-West, Inc., Petitioner
National Labor Relations Board, Respondent International Association of Machinists and Aerospace Workers, District Lodge W24 and Local Lodge 1005, Intervenor

          Argued November 21, 2016

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

          Douglas W. Hall argued the cause and filed the briefs for petitioner.

          Amy H. Ginn, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney.

          David L. Neigus argued the cause and filed the brief for intervenor International Association of Machinists and Aerospace Workers, District Lodge W24 and Local Lodge 1005 in support of respondent. Mark D. Schneider and William H. Haller entered appearances.

          Before: Griffith, Srinivasan, and Millett, Circuit Judges.



         This petition for review challenges the determination of the National Labor Relations Board that a union's effort to represent the workers who handle airline baggage is governed by the National Labor Relations Act and not the Railway Labor Act. In reaching its conclusion, the Board departed from its precedent without offering a rationale for its new approach. We therefore vacate the Board's order and remand the matter for further proceedings.



         The National Labor Relations Act, 29 U.S.C. §§ 151 et seq., regulates most private-sector labor relations. Concerned, however, that labor strife in the railway and airline industries could disrupt commerce nationwide, Congress expressly carved out these industries, which were already covered by the Railway Labor Act, from coverage under the NLRA framework when it passed the NLRA. See id. § 152; see also Tex. & New Orleans R.R. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548, 565 (1930) (remarking that "the major purpose of Congress in passing the Railway Labor Act was to provide a machinery to prevent strikes").[1] The Act creates a "special scheme" for the railway and airline industries, premised on "their unique role in serving the traveling and shipping public in interstate commerce." Verrett v. SABRE Grp., Inc., 70 F.Supp.2d 1277, 1281 (N.D. Okla. 1999). Under this separate regulatory scheme, various mediation and arbitration boards work to resolve airline and railway labor disputes that could interrupt interstate commerce. See id.

         The question of which labor scheme governs has meaningful consequences for both employers and employees. Chief among them are the different powers Congress has given the agencies that administer the relevant statutes. For example, the NLRB can initiate unfair-labor-practice proceedings and issue orders to employers, but the National Mediation Board (NMB), which administers the RLA, performs no law-enforcement function. The NMB's role is limited mainly to determining whether employees in the airline and railway industries have chosen union representation and then mediating collective bargaining. In addition, under the RLA, both employers and employees must exhaust an extended negotiation and mediation process before they can lawfully resort to self-help measures, such as unilaterally altering working conditions or calling a strike. This prolonged process is designed to avoid strikes and "keep transportation moving" in the specific subset of the American economy that concerns the RLA. Pan Am. World Airways, Inc. v. United Bhd. of Carpenters & Joiners of Am., 324 F.2d 217, 220 (9th Cir. 1963). Under the NLRA, by contrast, employers and employees have much more latitude to engage in self-help. Employees often prefer to organize under the NLRA, as it protects a wider array of "concerted activity" by employees than does the RLA. See Beckett v. Atlas Air, Inc., 968 F.Supp. 814, 820 (E.D.N.Y. 1997) (citing cases).

         The RLA originally covered only common carriers, but Congress expanded the Act in 1934 to cover certain companies that perform transportation-related services for those carriers. As a result, a company is subject to the RLA and falls outside the jurisdiction of the NLRB if it "is directly or indirectly owned or controlled by or under common control with any carrier" and "operates any equipment or facilities or performs any service" related to transportation. 45 U.S.C. § 151. Whether a company is controlled by a carrier, however, is often unclear. Thus, "the NLRB and the NMB have, in the absence of any statute addressing the point, jointly developed their own method for determining their mutual jurisdictional question of whether the NLRA or the RLA governs" in any given case. United Parcel Serv., Inc. v. NLRB, 92 F.3d 1221, 1223 (D.C. Cir. 1996).

         The NLRB frequently refers the jurisdictional question to the NMB for an advisory opinion and then defers to the NMB's view, based on the NMB's expertise in administering the RLA. See United Parcel Serv., Inc., 318 N.L.R.B. 778, 780 (1995) (referring cases to the NMB "enables the [NLRB] to obtain the NMB's expertise on jurisdictional matters most familiar to it"), aff'd, 93 F.3d 1221 (D.C. Cir. 1996); Pan Am. World Airways, Inc., 115 N.L.R.B. 493, 495 (1956) (explaining the NLRB's view of the NMB's primacy in resolving jurisdictional questions that implicate the RLA). The NLRB follows this accepted practice when a party raises a colorable claim that the NLRB lacks jurisdiction. See Spartan Aviation Indus., 337 N.L.R.B. 708, 708 (2002) ("When a party raises a claim of arguable jurisdiction under the RLA, the Board generally refers the case to the National Mediation Board . . . for an advisory opinion. . . ."). This practice dates back to at least 1956. See Pan Am. World Airways, Inc., 115 N.L.R.B. at 495 (declining to assert jurisdiction in a case over which the NMB claimed jurisdiction). An exception exists to the general rule, however: under "long-standing practice, " the NLRB will not refer jurisdictional questions to the NMB in situations where NMB precedent provides a clear answer. United Parcel Serv., Inc., 92 F.3d at 1228.


         The airlines that fly into and out of the Portland International Airport formed the Portland Airlines Consortium ("PAC" or "the Consortium") to operate the airport's baggage-handling system. Since 2011, the Consortium has retained ABM Onsite Services - West ("ABM" or "the Company"), an independent contractor, to run the system.[2] The issue in this case is whether ABM is a "carrier" under the RLA and thus falls outside the NLRB's jurisdiction. The answer turns on the degree of control that the Consortium exercises over the Company. To assess that control, it is important to understand the extent of the Consortium's contractual and practical ...

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